20-1275-bk

In re: Windstream Holdings, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE 

A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 18th day of February, two thousand twenty-one.

PRESENT:

JOHN M. WALKER, JR.,

ROBERT D. SACK,

RICHARD J. SULLIVAN,

Circuit Judges,

_____________________________________

IN RE: WINDSTREAM HOLDINGS, INC.

_____________________________________

GLM DFW, INC.,

Creditor-Appellant,

v. No. 20-1275-bk

WINDSTREAM HOLDINGS, INC.,

Debtor-Appellee.

_____________________________________
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For Creditor-Appellant: DAVOR RUKAVINA, Munsch Hardt Kopf 

& Harr P.C., Dallas, TX.

For Debtor-Appellee: C. HARKER RHODES IV (Stephen E. 

Hessler, P.C., Sara Shaw Tatum, 

Kirkland & Ellis LLP, New York, NY, on 

the brief), Kirkland & Ellis LLP, 

Washington, DC.

Appeal from the United States District Court for the Southern District of 

New York (Cathy Seibel, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that this appeal is DISMISSED.

GLM DFW, Inc. appeals an order of the district court (Seibel, J.) affirming 

an order of the bankruptcy court (Drain, Bankr. J.) that granted the debtor-inpossession, Windstream Holdings, Inc., the authority to pay various prepetition 

debts held by certain critical vendors and other creditors while Windstream was 

still in bankruptcy. GLM argues primarily that, in granting Windstream’s motion

over GLM’s objection, the bankruptcy court improperly delegated its judicial 

authority to Windstream. GLM’s position is that the bankruptcy court essentially 

rubber-stamped Windstream’s proposed list of creditors, and should have instead 

conducted a creditor-by-creditor analysis before allowing Windstream to offer any 
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creditor preferential treatment. Separately, GLM argues that the bankruptcy 

court erred by not requiring Windstream to publicly disclose that list of creditors. 

While this appeal was pending, the bankruptcy court confirmed Windstream’s 

plan of reorganization and Windstream substantially consummated that plan.

We assume the parties’ familiarity with the underlying facts, procedural 

history, and issues on appeal.

Discussion

Equitable mootness is a prudential doctrine under which a court may 

dismiss a bankruptcy appeal “when, even though effective relief could 

conceivably be fashioned, implementation of that relief would be inequitable.”

See Deutsche Bank AG v. Metromedia Fiber Network, Inc. (In re Metromedia Fiber 

Network, Inc.), 416 F.3d 136, 143 (2d Cir. 2005) (internal quotation marks omitted); 

see also Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944, 949–50 

(2d Cir. 1993). The doctrine is deployed in a “pragmatic” and flexible fashion, 

and must be responsive to the “specific factors presented in a particular case.” 

Beeman v. BGI Creditors’ Liquidating Tr. (In re BGI Inc.), 772 F.3d 102, 107–08 (2d 

Cir. 2014) (internal quotation marks omitted). Although equitable mootness is 
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“distinct from constitutional mootness,” the two “have been discussed in the same 

breath.” Metromedia Fiber Network, 416 F.3d at 143–44.

The primary purpose of equitable mootness is to give courts a tool “to avoid 

disturbing a reorganization plan once implemented.” Id. at 144. As a result, 

where, as here, such a plan has already been substantially consummated, we 

presume that an appeal is equitably moot. See Momentive Performance Materials 

Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.), 874 F.3d 787, 804 (2d Cir. 2017); BGI, 

772 F.3d at 108. A party seeking to overcome that presumption may do so only 

by demonstrating that five factors – dubbed the Chateaugay factors – are met:

(1) “the court can still order some effective relief;”

(2) “such relief will not affect the re-emergence of the debtor as a 

revitalized corporate entity;”

(3) “such relief will not unravel intricate transactions so as to 

knock the props out from under the authorization for every 

transaction that has taken place and create an unmanageable, 

uncontrollable situation for the [b]ankruptcy [c]ourt;”

(4) “the parties who would be adversely affected by the 

modification have notice of the appeal and an opportunity to 

participate in the proceedings;” and 

(5) “the appellant pursued with diligence all available remedies to 

obtain a stay of execution of the objectionable order if the 

failure to do so creates a situation rendering it inequitable to 

reverse the orders appealed from.”
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Chateaugay, 10 F.3d at 952–53 (internal quotation marks and alterations omitted). 

It is the appellant’s burden to show that all five of these factors are satisfied. See 

BGI, 772 F.3d at 108, 110;see also R2 Invs., LDC v. Charter Commc’ns, Inc. (In re Charter 

Commc’ns, Inc.), 691 F.3d 476, 482, 484 (2d Cir. 2012).

GLM takes the position that the equitable mootness doctrine is simply 

inapplicable in this case because the appeal does not directly concern the 

bankruptcy court’s order confirming Windstream’s plan of reorganization. We 

disagree.

Our precedent is clear that equitable mootness can be applied “in a range of 

contexts,” including appeals involving all manner of bankruptcy court orders. 

BGI, 772 F.3d at 109 & n.12 (collecting cases). In fact, Chateaugay itself applied the 

doctrine to dismiss a creditor’s challenge to various orders, several of which were 

independent of the bankruptcy court’s decision to confirm the reorganization 

plan. See 10 F.3d at 948. GLM’s argument therefore has no basis in law.

On top of that, GLM’s position makes little sense. For one thing, GLM

ignores the fact that an appeal does not need to directly challenge a reorganization 

plan to impact that plan; as discussed below, this appeal is a prime example of that 

phenomenon. For another, GLM overlooks the important interest of finality that 
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attaches once a reorganization plan is approved and consummated. See MPM 

Silicones, 874 F.3d at 804 (explaining that equitable mootness “requires us to 

‘carefully balance the importance of finality in bankruptcy proceedings against the 

appellant’s right to review and relief’” (quoting Charter Commc’ns, 691 F.3d at 

481)). Consequently, we conclude that the equitable mootness doctrine is 

applicable in this case even though GLM has not expressly asked us to reject the 

bankruptcy court’s approval of Windstream’s plan of reorganization.

Applying the doctrine here, GLM has clearly failed to demonstrate that it

meets all five of the Chateaugay factors. Most notably, GLM did not “pursue[] 

with diligence all available remedies to obtain a stay of execution of the 

objectionable order.” Chateaugay, 10 F.3d at 953 (internal quotation marks 

omitted); see also BGI, 772 F.3d at 110. Indeed, GLM never sought to stay the 

bankruptcy court’s initial order permitting Windstream to pay various prepetition 

debts, nor did GLM seek an expedited appeal or ask the bankruptcy court to hold 

off on confirming the reorganization plan until this dispute has been resolved.

This diligence requirement has been described as a “chief consideration” 

under Chateaugay. Metromedia Fiber Network, 416 F.3d at 144; see also MPM 

Silicones, 874 F.3d at 804. “In the absence of any request for a stay, the question is 
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not solely whether we can provide relief without unraveling the [p]lan, but also 

whether we should provide such relief in light of fairness concerns.” Metromedia 

Fiber Network, 416 F.3d at 145; see also MPM Silicones, 874 F.3d at 804–05. Here, 

fairness concerns strongly counsel in favor of dismissing GLM’s appeal.

Granting GLM the relief it seeks could cause tens of millions of dollars in 

previously satisfied claims to spring back to life, thereby potentially requiring the 

bankruptcy court to reopen the plan of reorganization. See Chateaugay, 10 F.3d 

at 953 (reasoning that equitable mootness applies when granting relief could 

threaten to unravel transactions that have already taken place or could otherwise 

“create an unmanageable, uncontrollable situation for the [b]ankruptcy [c]ourt” 

(internal quotation marks omitted)); see also Off. Comm. of Unsecured Creditors of 

LTV Aerospace & Def. Co. v. Off. Comm. of Unsecured Creditors of LTV Steel Co. (In re 

Chateaugay Corp.), 988 F.2d 322, 326 (2d Cir. 1993) (explaining that “completed acts 

in accordance with an unstayed order of the bankruptcy court must not thereafter 

be routinely vulnerable to nullification if a plan of reorganization is to succeed”). 

Moreover, it would likely be highly disruptive for the creditors that received these 

funds to return them more than a year later. And while a parade of horribles is

not guaranteed to occur, “[h]aving sought no stay of the bankruptcy court’s order 
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(and no expedited appeal), [GLM] bear[s] the burden of this uncertainty.” 

Metromedia Fiber Network, 416 F.3d at 145. Accordingly, we conclude that it would 

be inequitable to grant GLM relief at this belated stage, and that the appeal is 

therefore moot.1

Conclusion

We have considered GLM’s remaining arguments and find them to be 

meritless. As a result, we DISMISS this appeal as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

1 While GLM also seeks the disclosure of the identities of creditors that received payment of 

prepetition debts, the possibility that we could supply GLM with that relief without upsetting 

Windstream’s plan of reorganization is not a reason to allow this appeal to go forward. GLM 

has no cognizable interest in receiving those disclosures if it lacks the ability to parlay them into 

a possible financial recovery. See Coll. Standard Mag. v. Student Ass’n of the State Univ. of N.Y., 610 

F.3d 33, 35 (2d Cir. 2010) (noting that the “[t]he real value of the judicial pronouncement . . . is in 

the settling of some dispute which affects the behavior of the defendant towards the plaintiff” 

(internal quotation marks and emphasis omitted)).